Tuesday, April 30, 2013

Two Opportunities To Hear Me Speak

On May 7 at 11am Pacific/2pm Eastern, I will be speaking on the American Bar Association Forum on the Construction Industry "Hot Topic" conference call about the potential ramifications on the Metcalf Construction decision and the Amicus brief submitted in that case by DBIA and AIA.  I will be joined by Mike Kennedy, general counsel for AGC, who will be discussing the issues in the Amicus brief submitted by AGC in the same case.  I will post the link when I get it.

Closer to home, on May 8, I am on a panel with Eric Smith (University of Washington), Dan Absher (Absher Construction), and Bob Maruska (Port of Seattle) at the DBIA Northwest Region breakfast meeting.  We will be discussing the newly revised Washington State alternative procurement legislation.  The link to that meeting is here.  http://www.dbianwc.org/index.php?option=com_mc&view=mc&mcid=72&eventId=384965&orgId=dbianr

Hope you can join me at one of these!

Monday, April 22, 2013

On Earth Day, A Salute to Building Green

To celebrate Earth Day, I want to acknowledge the Seattle firm the Miller Hull Partnership who are the architects for The Bullitt Foundation office building, the greenest office building in the world.  http://bullittcenter.org/building  It's an absolutely amazing building, and I love that it is located in my adopted home town. 

Thursday, April 4, 2013

Update on the Metcalf Construction v. U.S. Case

Those who have been following my blog might recall a terrible, horrible case that I thoroughly trashed last year, Metcalf Construction Co., v. U.S.  For a synopsis of the facts of the case, check the February 22, 2012 post to this blog. The Metcalf decision is finally on appeal to the United States Court of Appeals for the Federal Circuit, and no less than four major industry organizations submitted amicus curiae or "friend of the court" briefs explaining why the Court of Federal Claims' ("CFC") decision was truly horrible.  Along with Michael Loulakis, I drafted the brief for the Design-Build Institute of America and the American Institute of Architects.  Our brief focused on the issue of differing site conditions ("DSC") claims.   The Associated General Contractors ("AGC") and the Associated Builders and Contractors ("ABC") submitted briefs that discussed the issue of the breach of the covenant of good faith and fair dealing.  The briefs are available in the case file on PACER.gov, or you can (hopefully) link to them on my firm's website here:  rtp-law.com

The lower court royally screwed up the analysis of DSC claims, created an unprecedented standard that makes it nearly impossible for design-builders to recover either DSC or any changed condition claim.  Previous case law established four requirements to recover on a DSC claim:  1) the government must make a representation with respect to the condition; 2) the actual conditions were not reasonably foreseeable; 3) the design-builder was entitled to rely on the representation; and 4) there is an actual changed condition.  The CFC judge found that the design-builder could rely on several representations regarding site conditions for the purposes of bidding the project.  However, the contract required that, for the purposes of performance of the contract, the design-builder conduct an independent investigation regarding these conditions.  The court (wrongly) reasoned that the requirement to conduct an independent investigation negated the representation and reliance factors, and the design-builder was not entitled to recover for its DSC claim. 

The problem with the court's reasoning is that all design-build contracts should require the design-builder to perform an independent investigation of the information provided by the owner.  A design-builder cannot warrant the performance of the building without the independent review.  That independent review of the project and the higher warranty are a few of the chief benefits of the design-build delivery method.  The court essentially transformed the requirement of the independent review into the design-builder's warranty of all potential conditions on the project.  The problem is that if the owner wants a price for the project, there must be some parameters on which the design-builder can rely.  Shifting all risk to the design-builder is simply not economically feasible or sustainable.

The lower court also heightened the standard for recovery for a claim of the breach of the covenant of good faith and fair dealing. The CFC's decision essentially sanctioned punitive and incompetent behavior on the part of the government. The AGC and ABC both submitted excellent briefs that explained that the heightened standard required by the court would make recovery under these claims virtually impossible and dramatically increase the cost of contracting with the government.  Their briefs explained that the government must act in good faith when procuring services and cannot deprive the parties with whom it contracts of the benefit of their bargain. 

Hopefully, the Court of Appeals will overturn this truly horrible decision.  I'll keep you updated.

Tuesday, April 2, 2013

Why I No Longer Work at a Big Firm . . .

I've often been asked why I don't work for a large law firm.  I started out life as a large firm lawyer, but the linked article provides a perfect example of why I am no longer with a firm.  http://www.nytimes.com/2013/03/29/opinion/the-case-against-the-law-firm-billable-hour.html?smid=pl-share&_r=1&

Huge law firms and even some smaller firms require their partners and associates to work crazy hours and have outrageous billable rates to maintain the overhead to which they have become accustomed.  Personally, I prefer hanging with my kids than looking at a Picasso in the lobby.  Don't get me wrong.  The Picasso is cool, but I can always visit one at the museum. 

Also, even smaller law firms don't usually allow for alternative billing arrangements.  I have the flexibility to bill my clients however they would like, by the hour, by the project, etc.  Technology allows me to be available and ubiquitous.    Partner level lawyers around the country are opting out of the big firm grind and migrating to a leaner more efficient model.  Soon, those large law firms will be as outdated as "casual Friday."